Huge Copyright Victory in 10th Circuit

Circuits Now Split Between 9th & 10th
No Takebacks

Works, the 10th circuit ruled Tuesday in Golan v. Gonzalez, are used by people to express themselves. Even more so once the work enters the public domain and people may use the work to express themselves without paying fees to the copyright holder.

Therefore the court ruled, the 1st Amendment demands a work in the public domain stay in the public domain once there, for the common good. No one -- not even Congress -- may authorize a work be placed back under copyright again.

The 10th Circuit ruling attempts to strike a balance between:

The Sonny Bono Copyright Term Extension Act, CTEA (also know as "the Micky Mouse act, as it saved Disney from losing copyright on Micky Mouse) by increased the duration of existing and future copyrights from life-plus-50-years to life-plus-70-years,

Section 514 of the URAA implements Article 18 of the Berne Convention for the Protection of Literary and Artistic works, and

Normal defenses to copyright such as the fair use defense, which allows the public to utilize a copyrighted work "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." 17 U.S.C. § 107. The defense protects the public’s First Amendment interest in an author’s original expression by "afford[ing] considerable latitude for scholarship and comment, and even for parody." Eldred, 537 U.S. at 220 (internal citations and quotation marks omitted).

This is a big victory built on a First Amendment bit of business from the Supremes. It will be interesting to see if it stands up for the long haul; some people don't think the ruling will survive. The 9th Circuit dismissed a nearly identical case in Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007), thus setting up a split circuit in the US court of appeals where if you live in the 10th the law says no takebacks, but if you live in the 9th -- Map of the appeals court -- the law says copyright holders can screw everyone even more-so.

Assuming the 10th Circuit doesn't overrule itself en banc (all three judges are Clinton appointees) the Supreme Court is likely to take this case to resolve the split.

If you're a fan of good judicial writing, this is a well-written opinion showing a terrific command of copyright law. Make sure to check it out (linked up top.)

For now, bask in the overturning -- in Utah, Colorado, New Mexico, Wyoming, Kansas & Oklahoma -- of very bad law.

No takebacks. Seems simple enough.